Commander in chief clause2/16/2024 ![]() ![]() Although some puzzles remain, this Article takes some initial strides in the long march towards deciphering the Commander-in-Chief Clause. By decrypting the Clause, this Article highlights the extent to which Presidents have amassed power untethered from constitutional moorings and also may help fend off further executive overreach. Commander in Chief The President shall be Commander in Chief of the Army and Navy of the United States. If this Article’s assertions are correct, however, Presidents will no longer be able to insist that the Founders established a chief commander that can start wars or one that enjoys exclusive authority over operations. Without a sense of the Clause’s alpha and omega, Presidents will continue to cite it to evade, minimize, and commandeer congressional powers. commander-in-chief and chief executive under Article II of the Constitution, checked by Congresss power of the purse. How we read the Commander-in-Chief Clause matters. In the grand scheme of things, the Commander-in-Chief Clause is far less significant than these other clauses. The most expansive readings of the commander-in-chief clause came from Democrats (supporters of Polk), who 13 argued that the commander in chief was justified in pre-emptively beginning the war to protect Texas from invasion3, and that once war is declared, Congress’ power over the commander-in- chief’s prosecution of the war ends. These other sources of power convey authority over the appointment, direction, and removal of military officers and substantial influence on which military bills will become law. (I am not sure what Richard means by the. Article II, which assigns all of the executive powers to the president. Due to the rest of Article II and the Presentment Clause, the President wields considerable authority and influence over the military, far more than a generic commander in chief would. For that matter, so does the Vesting Clause of. ![]() To be sure, the President is more than a mere general and admiral. Rather, they signed the proposals into law and, thereafter, sought to faithfully execute them. This Commander-in-Chief Clause gives the President the supreme right of command of the nation’s military forces. of the Militia of the several States, when called into the actual Service of the United States. Indeed, early Presidents never objected to congressional bills that sought to regulate military operations pervasively, including wars. Commander of Militia The President shall be Commander in Chief. executive authority and the commander in chief clause could overcome virtually any law that constrains the executive. Nothing about the term “commander in chief” would have suggested such autonomy because previous chief commanders had lacked such independence. Crucially, the Clause does not grant any exclusive authority over peacetime operations or even the conduct of war. Rather than being a sui generis military potentate, the President is nothing more than a chief commander, or what Alexander Hamilton called the “first General and Admiral.” The Commander in Chief of the Army and Navy lacks a vast arsenal of military authority but instead possesses only the constrained powers of a general and admiral. By borrowing a familiar expression, the Constitution incorporated the modest, contemporary conception. Throughout the seventeenth and eighteenth centuries, there were, at any one time, a multitude of British and American commanders in chief, and both assemblies and other military officials consistently directed these commanders, often in quite intrusive ways. an exhaustive account of commanders in chief, the Commander-in-Chief Clause,andhowthat ClausefitsintotheConstitution. In contrast to modern assumptions, the Article reveals that eighteenth-century commanders in chief enjoyed neither sole nor supreme authority over the military. Using eighteenth-century understandings as a yardstick, this Article topples the orthodox reading of the Clause and demarcates the Clause’s elusive frontiers. In particular, establishing the Clause’s limits is an acute and persistent problem. The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject. ![]() Yet, seemingly paradoxically, proponents of this stance cannot say where the Commander in Chief’s power begins and ends. Under such readings, the meaning of “commander in chief” is as obvious as it is unequivocal-it confers some measure of absolute and unchallengeable authority upon the President. By some lights, the Clause not only equips the President with exclusive control over military operations, but also conveys the powers to start wars, create military courts, direct and remove officers, and wield emergency wartime powers. The conventional wisdom is that the Commander-in-Chief Clause arms the President with a panoply of martial powers. ![]()
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